Advances in Social Science, Education and Humanities Research, volume 586

Proceedings of the 2021 International Conference on Public Relations and

Social Sciences (ICPRSS 2021)

Legal Protection of Women’s Equal Right to

Employment
Kexin Sun1,*
1
Fujian Police College, Execution Department, Fuzhou China, 350000
*
Corresponding author. Email: skx888@163.com

ABSTRACT
Equality is the ultimate goal of human history and equality between the sexes is the common pursuit of all peoples in
the world. Women’s equal employment status is to some extent a mirror of a country’s level of human rights
development and implementation. In recent years, gender discrimination has become the main problem of employment
for women and the unequal treatment of women in employment has occurred frequently in the world, such as
employment discrimination, occupational discrimination or wage discrimination. Although international conventions,
as well as laws and regulations of various countries clearly stipulate that employing units may not discriminate against
workers on the basis of sex, due to the fact that the content of the legal system has not yet been concretely improved
and the relevant departments have not strictly investigated and dealt with it, gender discrimination in employment still
exists. This paper mainly uses comparative analysis to study the international law stipulation in the anti-employment
sex discrimination and analyze the problems of each country’s present anti-employment sex discrimination law, this
paper also puts forward some legislative and judicial suggestions on anti-employment discrimination for future progress.

Keywords: women, equality, employment discrimination, women’s equal right to employment.

relief and the proof. This is also a gap in the current

1. INTRODUCTION
At present, women’s employment discrimination is
still a prominent issue. In the era of globalization in which
employment equality has become a universal value, how
to form a sound and complete legal guarantee system
against employment discrimination has become an urgent
issue.
research on anti-discrimination against women in
employment.
Based on the ideas of finding, analyzing and solving
problems and through the methods of literature research
and comparative research, this paper puts forward some
suggestions to solve the discrimination of women in
employment.

In many countries, female’s equal right in 2. ANALYSIS ON GENDER

employment is protected in the constitution. With the
development of equality movement, there are more and
more cases concerning equal employment rights for
women, which has played a positive role in the
constitutional protection of women’s right. Through the
collation of the present research situation abroad, it can
be found that even though the national conditions vary
from country to country and the frequency and
importance of each law are not the same, the basic
guarantee of women’s equal right to employment mainly
take the constitution as the most standard legal protection
way, secondly echo with the related law again. However,
in the process of dealing with practical problems, the
problems are mostly the same, mainly existing in the
definition of the concept of discrimination, the way of
DISCRIMINATION
2.1. Theories related to gender discrimination
in employment
A study by Stelle James (1975) estimated that the
annual loss in GDP due to sex discrimination was about
3%. Gender-related discrimination called “Sexism”,
which relates to discrimination and prejudice due to one’s
biological or social sex [1]. This term first appeared in
the United States in the 1960s which is used to describe
all manner and behavior that discriminate against women
in life. In The Convention on the Elimination of All Forms
of Discrimination against Women, the term

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 Advances in Social Science, Education and Humanities Research, volume 586
“Discrimination against women” is more clearly defined
as any distinction, exclusion or restriction based on sex
which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women,
whether or not married, of their human rights and
fundamental freedoms in the political, economic, social,
cultural, civil or any other field on the basis of equality
between men and women.
2.2. Forms of discrimination
2.2.1. Employment discrimination
Employment discrimination can take three forms:
difference, rejection, or special treatment. “Difference”
refers to unequal treatment in view of gender, such as
increasing female entry requirements. “Rejection” refers
to the employer’s refusal to hire female job applicants or
refuses to give female workers equal treatment at work.
“Special treatment” refers to special treatment on the
basis of gender, such as having priority to the
employment of men in the job search process or giving
priority to the promotion of men’s job status [1].
2.2.2. Occupational discrimination
Employed women are often placed in less important,
less technical, and lower-paid jobs ---so called “Three-
plus-three-less” jobs for women: more fake jobs with
fewer real jobs, more supporting roles with fewer leading
roles, and more deputy positions with fewer full-time
jobs. Therefore, the “Sex segregation” forms in the
workplace [2]. Once women are faced with maternity
leave, breast-feeding leave and so on, the performance
appraisal indicators will be low which will have a
negative impact on the promotion of women.
2.2.3. Wage discrimination
Income is also an important measure of the
occupational status of both sexes. The income ratio
between men and women is a direct indicator of
discrimination against women in the occupational field.
Statistics for 2007 show that the Nordic countries have
the smallest income gap between men and women, with
countries such as Sweden, Norway and Finland having an
income ratio of 100:84, or 84% of men’s income. China,
the United States, Russia and other countries are in the
middle, at 65.5%. India is at the bottom, where women
make up only 38% of men’s income [3, 4]. It is a self-
evident fact that men’s wages are higher than women’s
under the same circumstances and there is a huge gap in
wages between sexs.
2.3. Legal system of eliminating employment
discrimination
2.3.1. Universal Declaration of Human Rights
Internationally, the earliest record of the right to equal
employment can be traced back to the adoption of the
Universal Declaration of Human Rights by the United
Nations General Assembly in 1948. Article 23 of the
Declaration provides that every citizen has the right to
work, to freely choose his or her occupation and to protect
themselves against unemployment. In addition, Article
23 paragraph 1 of the Declaration specifies the right to
work, the right to employment, and the right to Equal Pay
Day [5].
2.3.2. International Covenant on Economic,
Social and Cultural Rights
The International Covenant on Economic, Social and
Cultural Rights affirms the equal economic, social and
cultural rights of men and women. Article 7 of the
Convention makes explicit provision for equality
between men and women in employment, guaranteeing
women working conditions not less favorable than those
enjoyed by men and the right to Equal Pay Day [5].
2.3.3 The Convention on the Elimination of All
Forms of Discrimination against Women
The Convention on the Elimination of All Forms of
Discrimination against Women is regarded as the
“International Charter of Women’s rights”. It is an
important international human rights convention
specially formulated by the United Nations to eliminate
discrimination against women and strive for gender
equality. The convention stipulates that proper legislation
and other measures, including severe sanctions, should be
adopted to prohibit all discrimination against women [6].
2.3.4. International Labor Organization’s non-
discriminatory standards
The first international labor standards directly
applicable to women were formally adopted by the
International Labor Organization (ILO) at its first
meeting in 1919. At that meeting, the International Labor
Organization had taken into account the Convention on
the protection of pregnant women and the Convention on
night work, which had originally been designed to protect
and preserve the family and social roles of women [7].
Equal Remuneration Convention was also drafted at the
thirty-fifth session of the International Labor Conference
in 1995. “Equal Pay Day” means equal pay for work of
equal value, regardless of the sex of the worker [8]. Equal
Pay Day is one of the core conventions of the ILO and
plays an extremely important role in prohibiting and
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eliminating gender discrimination in the field of
occupation.
3. SHORTCOMINGS OF CURRENT ANTI-
EMPLOYMENT DISCRIMINATION LAW
Fawcett (1918) put forward the concept of “Equal Pay
Day” which is to demand equal employment
opportunities, advocating the protection of women and
men’s fair competition [5]. Equal Pay Act plays a vital
role in reducing wage discrimination. However, it did not
explain how to eliminate gender discrimination in
employment and occupation.
At present, many countries have not enacted special
laws and legal provisions for the protection of women’s
rights or interests and the legal system about this is
scattered which has not formed an organic unified
system. In many countries, the current legislation on
women’s right to equal employment is mostly in
principle. First, the definition of gender discrimination in
employment is not clear which results that it is difficult
to prove through the courts that women have been
discriminated against. Second, in terms of gender
discrimination in employment, the current law lacks the
operability to determine gender discrimination in
employment. Finally, with regard to legal liability, the
existing provisions are too general and simple, with
neither a clear definition of responsibility nor a specific
implementing organ [9]. Therefore, such a law would
have neither a deterrent effect nor the legislative
objective of protecting women’s right to equal
employment.
4. FURTHER LEGISLATIVE PROPOSALS
4.1. Establish a special independent equal
employment commission
From the legislative practice of various countries or
regions, the role of the establishment of an Equal
Opportunities Commission is very important. Many
countries or regions also have this kind of institution
against gender discrimination in employment. For
example, the Equal Employment Opportunity
Commission (EEOC) in the United States, the EEOC in
the United Kingdom and the EEOC in Hong Kong all
play a pivotal role in ensuring women’s equal
employment rights. In line with the practice of national
enforcement and enforcement agencies of equal
employment laws for women, such agencies should have
the following characteristics and functions. First, the
institution shall be composed of professionals, among
whom, in addition to government personnel, the
government shall also appoint relevant labor law experts
and scholars, as well as some units, trade unions or
organizations. Because of the complexity of gender
discrimination cases, and in particular the complexity of
the criteria for identifying various discriminatory acts, it
is important that the personnel dealing with the issue be
of professional quality and professionalism. Secondly, it
will play an important role in law enforcement. It can not
only bring lawsuits on behalf of discriminated individuals
in major cases, but also has the right to identify and
punish employers for discriminatory practices. It also has
the right to issue "non-discrimination notices", which
means that the Equal Opportunities Commission can
enforce the notices through civil courts, follow up the
court litigation, conduct investigations, provide advisory
opinions to the government and take actions to educate
and persuade public opinion.
4.2. Refine and improve relevant laws and
regulations
The existing legal provisions on employment
discrimination are relatively scattered and countries
should improve them on the basis of the existing laws and
regulations in accordance with their national conditions.
First of all, in the formulation of legal provisions,
countries should clearly define the specific definition of
gender discrimination in employment. All countries
should also broaden the scope of gender-based
employment discrimination and ensure that it does not
occur at all stages of employment. Secondly, most of the
discrimination provided for in the existing laws is direct
discrimination and there is no corresponding provision
for those hidden acts that have substantial discriminatory
consequences for a given sex. Because indirect
discrimination is difficult to distinguish and the
identification standard is complex and more covert, under
normal circumstances, employers generally use indirect
discrimination [10]. Thus, indirect discrimination is more
common in our daily life. Therefore, each country’s law
should incorporate the indirect discrimination behavior
into the legal regulation, provides the concrete
cognizance standard. In conclusion, in the future
legislative process, each country should explicitly
prohibit gender-based employment, occupational, and
wage discrimination.
4.3. Improve the court trial system and increase
the intensity of punishment
In practice, compared with the employing units,
female job seekers are generally in a weak position and
the employing units are easy to cover up their
discrimination with other plausible reasons. Countries
should draw on successful experiences, such as the EU
member states’ legislation that shifts the burden of proof
to the respondent employer when the plaintiff has
established de facto discrimination. Because from a
practical point of view, it is difficult for workers to collect
the relevant evidence of being discriminated against, thus
bearing the risk of losing the case. If the employing units
bear the burden of proof, they need to provide effective
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evidence to prove the rationality of their behavior. If the
employing unit has no way to prove the rationality of its
behavior, the employer can be presumed to discriminate
against the worker. Such rules of proof can increase the
cost of employing units to carry out discriminatory acts
and increase the enthusiasm of workers to seek legal
redress when they are discriminated against, which are
more conducive to the realization of women’s equality
employment. In addition, since the execution is mainly
the responsibility of the court, the court’s trial team
should increase the proportion of women. If it is
determined that there is unfair discrimination in the case,
the court can order the determination of the rights of the
parties, recommend litigation procedures and award
damages [11]. In addition, anti-employment
discrimination laws should make a clear distinction
between the stages of conduct of a person who
discriminates, taking into account the stages of his or her
violation, so as to make him or her more willing to
suspend the act of discrimination automatically at an
early stage, rather than encouraging expose fact to
enforcement measures. It makes possibilities to consider
the demand of employing agencies which will promote
their compliance with the relevant laws and regulations.
5. CONCLUSION
In recent years, sex discrimination as a common form
of discrimination has been widely concerned. Defining
the concept of gender discrimination, formulating clear
laws and adequate remedies to eliminate gender
discrimination have become a major issue in the field of
legal research. The lively discussion of discrimination in
recent years is the improvement of people’s awareness of
their rights. The process of striving for gender equality
has been synchronized with the constitutional
development of each country and the provisions on
gender equality in the constitution reflect the degree of
democracy and progress in the country. Women’s equal
right to employment are also stipulated in various
international conventions. These provisions have played
a significant role in the subsequent enactment of laws
specifically designed to protect women’s right to equal
employment.
From the perspective of legislation and practice, the
specific legislation on sex discrimination in employment
has not been fully enacted and implemented, and the
penalties imposed on the units and individuals
responsible for such discrimination have not been
sufficiently severe. Also, the enforcement environment
and supporting measures remain inadequate. Starting
from the definition of employment discrimination, by
combing the causes of its formation and the status quo of
anti-employment discrimination law, this paper puts
forward the assumption of perfecting the legal protection
of anti-employment discrimination from three links:
legislation, law enforcement and judicature in order to
find a solution to this problem. The author hopes that
phenomenon of gender discrimination in women’s
employment can be fundamentally improved and
women’s labor rights and interests can be fully protected.
In the future, women can really realize their own value in
all walks of the society to give a full play of their roles.
AUTHORS’ CONTRIBUTIONS
This paper is independently completed by Kexin Sun.
ACKNOWLEDGMENTS
I appreciated the professor Richard for his help and
guidance in this paper. I learned a lot about equality law
and further deepened my interest in law.
I also appreciated my teacher Alisa Wang for her help
through the writing of this paper.
Finally, I would like to thank all the teachers, friends
and family members for their care and help.
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